The accused testified at trial that he knew he had too much to drink, so that when he went to his vehicle which was parked on the street, he put the emergency brake on and put the vehicle in park. He turned the engine on, put the heater on for warmth, and fell asleep. A police officer attended at the parked vehicle after a complaint. He found the front right tire on the curb, and noted that the vehicle was parked in a loading zone. The appellant was sitting behind the steering wheel in a deep sleep. The vehicle was running and the driver's window was open. When Mr. Amendt was woken, he tried to move the gearshift by pushing up. The vehicle was already in park. Mr. Amendt had to be asked three times to shut off the vehicle.

The accused testified at trial that he knew he had too much to drink, so that when he went to his vehicle which was parked on the street, he put the emergency brake on and put the vehicle in park. He turned the engine on, put the heater on for warmth, and fell asleep. A police officer attended at the parked vehicle after a complaint. He found the front right tire on the curb, and noted that the vehicle was parked in a loading zone. The appellant was sitting behind the steering wheel in a deep sleep. The vehicle was running and the driver's window was open. When Mr. Amendt was woken, he tried to move the gearshift by pushing up. The vehicle was already in park. Mr. Amendt had to be asked three times to shut off the vehicle.

Statutes, Regulations and Rules Cited: Criminal Code, s. 253(a). Was the accused liable for having care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol, contrary to Section 253(a) of the Criminal Code? The factual issue to be addressed was whether the accused's acts associated with the vehicle involved a risk of putting the vehicle in motion so that it could become dangerous.

The accused in this case, the accused had not "merely postponed a decision as to when he would drive again", he had decided "to wait in the car until sober", he "had the intention to drive in three to four hours, however, when sober". (Para 11) It is common ground on this appeal and now trite law that intention to set a vehicle in motion is not an essential element of the offence set out in s. 253(a) of the Criminal Code This is not to say, however, that the details of the accused's intention are irrelevant, even when the Crown does not rely on the presumption of care or control set out in s. 258(1)(a), thus evoking rebuttal. Intention remains relevant to constitute the mens rea of the offence, which is the intent to assume care or control after the voluntary consumption of alcohol or a drug. (Para 13) The accused's intentions were clearly relevant to the issue of the mens rea of the offence. Even if he placed maximum weight on the accused's evidence in that regard, the trial judge could nevertheless properly find him guilty if the evidence supported the conclusion that as a result of the accused's intended acts the vehicle could be unintentionally set in motion. Of course, if the trial judge found there was an intention to drive while impaired, thwarted only by falling asleep, the offence would also be established. (Para 19) The appeal was allowed, the conviction was set aside and an acquittal was directed. The court agreed with the appellant's argument that the trial judge had erred in concluding that the vehicle could be set in motion accidentally. It was unreasonable to conclude that there was any reasonable possibility of the vehicle being set in motion by accidental movements of the accused while asleep or upon waking. The emergency brake was set, so to move the vehicle would have required moving the gear shift to "drive" from "park", which involved both moving the gear shift and depressing the brake pedal, plus releasing the emergency brake. (Para 21)

R. V. Martindale, Supreme Court, October the 30th, 1995 Cariboo in R. v. Obradovic, [1990] B.C.J. No. 1036, Prince George Registry No. 17736, R. v. Riley (1978) 42 C.C.C. (2d) 437 (Ont. C.A.) R. v. McDonald (1996) O.J. No. 4571 (Ontario Court of Justice - General Division) Ford v. The Queen (1982) 65 C.C.C. (2d) 392. R. v. Toews (1985), 21 C.C.C. (3d) 24 (S.C.C.)